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CASE NO.:
Appeal (civil) 6110 of 2003
PETITIONER:
Surya Dev Rai
RESPONDENT:
Ram Chander Rai & Ors.
DATE OF JUDGMENT: 07/08/2003
BENCH:
R.C. Lahoti & Ashok Bhan.
JUDGMENT:
J U D G M E N T
[@ S.L.P. (c) NO.12492 of 2002]
R.C. Lahoti, J.
Leave granted.
The appellant filed a suit, for issuance of permanent preventive
injunction based on his title and possession over the suit property
which is a piece of agricultural land, in the Court of Civil Judge. He
also sought for relief by way of ad interim injunction under Order
XXXIX Rules 1 and 2 of the C.P.C. The prayer was rejected by the trial
court as also by the appellate court. Feeling aggrieved thereby the
appellant filed a petition (C.M.W.P.No.20038 of 2002) in the High
Court labeling it as one under Article 226 of the Constitution. The High
Court has summarily dismissed the petition forming an opinion that
the petition was not maintainable as the appellant was seeking interiminjunction against private respondents. Reference is made in the
impugned order to a Full Bench decision of Allahabad High Court in
Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad & Ors. (1991)
Allahabad Law Journal 159. Earlier the remedy of final civil revision
under Section 115 of the C.P.C. could have been availed of by the
appellant herein but that remedy is not available to the appellant
because of the amendment made in Section 115 of the C.P.C. by
Amendment Act 46 of 1999 w.e.f. 01.07.2002.
This appeal raises a question of frequent occurrence before the
High Courts as to what is the impact of the amendment in Section 115
of the C.P.C. brought in by Act 46 of 1999 w.e.f. 01.07.2002, on the
power and jurisdiction of the High Court to entertain petitions seeking
a writ of certiorari under Article 226 of the Constitution or invoking thepower of superintendence under Article 227 of the Constitution as
against similar orders, acts or proceedings of the courts subordinate
to the High Courts, against which earlier the remedy of filing civil
revision under Section 115 of the C.P.C. was available to the person
aggrieved. Is an aggrieved person completely deprived of the remedy
of judicial review, if he has lost at the hands of the original court and
the appellate court though a case of gross failure of justice having
been occasioned, can be made out?
Section 115 of the Code of Civil Procedure as amended does
not now permit a revision petition being filed against an order
disposing of an appeal against the order of the trial court whether
confirming, reversing or modifying the order of injunction granted by
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the trial court. The reason is that the order of the High Court passed
either way would not have the effect of finally disposing of the suit or
other proceedings. The exercise of revisional jurisdiction in such a
case is taken away by the proviso inserted under sub-section (1) of
Section 115 of the CPC. The amendment is based on the Malimath
Committees recommendations. The Committee was of the opinion
that the expression employed in Section 115 CPC, which enables
interference in revision on the ground that the order if allowed to
stand would occasion a failure of justice or cause irreparable injury to
the party against whom it was made, left open wide scope for theexercise of the revisional power with all types of interlocutory orders
and this was substantially contributing towards delay in the disposal of
cases. The Committee did not favour denuding the High Court of the
power of revision but strongly felt that the power should be suitably
curtailed. The effect of the erstwhile clause (b) of the proviso, being
deleted and a new proviso having been inserted, is that the revisional
jurisdiction, in respect of an interlocutory order passed in a trial or
other proceedings, is substantially curtailed. A revisional jurisdiction
cannot be exercised unless the requirement of the proviso is satisfied.
As a preclude to search for answer to the question posed it
becomes necessary to recollect and restate a few well-established
principles relating to the Constitutional jurisdiction conferred on the
High Court under Articles 226 and 227 of the Constitution in thebackdrop of the amended Section 115 of the C.P.C.
Writ of Certiorari
According to Corpus Juris Secundum (Vol.14, page 121)
certiorari is a writ issued from a superior court to an inferior court or
tribunal commanding the latter to send up the record of a particular
case.
H.W.R. Wade & C.F. Forsyth define certiorari in these words :-
"Certiorari is used to bring up into the
High Court the decision of some inferior
tribunal or authority in order that it may be
investigated. If the decision does not passthe test, it is quashed \200\223 that is to say, it is
declared completely invalid, so that no one
need respect it.
The underlying policy is that all
inferior courts and authorities have only
limited jurisdiction or powers and must be
kept within their legal bounds. This is the
concern of the Crown, for the sake of orderly
administration of justice, but it is a private
complaint which sets the Crown in motion."
(Administrative Law, Eighth Edition, page
591).
The learned authors go on to add that problem arose on
exercising control over justices of the peace, both in their judicial and
their administrative functions as also the problem of controlling the
special statutory body which was addressed to by the Court of Kings
Bench. "The most useful instruments which the Court found ready to
hand were the prerogative writs. But not unnaturally the control
exercised was strictly legal, and no longer political. Certiorari would
issue to call up the records of justices of the peace and commissioners
for examination in the Kings Bench and for quashing if any legal
defect was found. At first there was much quashing for defects of
form on the record, i.e. for error on the face. Later, as the doctrine of
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ultra vires developed, that became the dominant principle of control"
(page 592).
The nature and scope of the writ of certiorari and when can it
issue was beautifully set out in a concise passage, quoted hereafter,
by Lord Chancellor Viscount Simon in Ryots of Garabandho and
other villages Vs. Zamindar of Parlakimedi and Anr. \200\223 AIR 1943
PC 164. "The ancient writ of certiorari in England is an original writ
which may issue out of a superior Court requiring that the record of
the proceedings in some cause or matter pending before an inferiorCourt should be transmitted into the superior Court to be there dealt
with. The writ is so named because, in its original Latin form, it
required that the King should "be certified" of the proceedings to be
investigated, and the object is to secure by the exercise of the
authority of a superior Court, that the jurisdiction of the inferior
tribunal should be properly exercised. This writ does not issue to
correct purely executive acts, but, on the other hand, its application is
not narrowly limited to inferior "Courts" in the strictest sense. Broadly
speaking, it may be said that if the act done by the inferior body is a
judicial act, as distinguished from being a ministerial act, certiorari will
lie. The remedy, in point of principle, is derived from the
superintending authority which the Sovereigns Superior Courts, and in
particular the Court of Kings Bench, possess and exercise over inferior
jurisdictions. This principle has been transplanted to other parts of theKings dominions, and operates, within certain limits, in British India."
Article 226 of the Constitution of India preserves to the High
Court power to issue writ of certiorari amongst others. The principles
on which the writ of certiorari is issued are well-settled. It would
suffice for our purpose to quote from the 7-Judge Bench decision of
this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. \200\223
(1955) 1 SCR 1104. The four propositions laid down therein were
summarized by the Constitution Bench in The Custodian of Evacuee
Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. \200\223 (1961)
3 SCR 855 as under :-
"\200\200the High Court was not justified in
looking into the order of December 2, 1952,
as an appellate court, though it would bejustified in scrutinizing that order as if it was
brought before it under Article 226 of the
Constitution for issue of a writ of certiorari.
The limit of the jurisdiction of the High Court
in issuing writs of certiorari was considered
by this Court in Hari Vishnu Kamath Vs.
Ahmad Ishaque 1955-I S 1104 : ((s) AIR
1955 SC 233) and the following four
propositions were laid down :-
"(1) Certiorari will be issued for correcting
errors of jurisdiction;
(2) Certiorari will also be issued when theCourt or Tribunal acts illegally in the exercise
of its undoubted jurisdiction, as when it
decides without giving an opportunity to the
parties to be heard, or violates the principles
of natural justice;
(3) The court issuing a writ of certiorari
acts in exercise of a supervisory and not
appellate jurisdiction. One consequence of
this is that the court will not review findings
of fact reached by the inferior court or
tribunal, even if they be erroneous.
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(4) An error in the decision or
determination itself may also be amenable to
a writ of certiorari if it is a manifest error
apparent on the face of the proceedings,
e.g., when it is based on clear ignorance or
disregard of the provisions of law. In other
words, it is a patent error which can be
corrected by certiorari but not a mere wrong
decision."
In the initial years the Supreme Court was not inclined to depart
from the traditional role of certiorari jurisdiction and consistent with
the historical background felt itself bound by such procedural
technicalities as were well-known to the English judges. In later
years the Supreme Court has relaxed the procedural and technical
rigours, yet the broad and fundamental principles governing the
exercise of jurisdiction have not been given a go-by.
In the exercise of certiorari jurisdiction the High Court proceeds
on an assumption that a Court which has jurisdiction over a subject-
matter has the jurisdiction to decide wrongly as well as rightly. The
High Court would not, therefore, for the purpose of certiorari assign to
itself the role of an Appellate Court and step into re-appreciating orevaluating the evidence and substitute its own findings in place of
those arrived at by the inferior court.
In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills
Division and Appeals, Assam & Ors., (1958) SCR 1240, the
parameters for the exercise of jurisdiction, calling upon the issuance of
writ of certiorari where so set out by the Constitution Bench : \200\223
"The Common law writ, now called the order of
certiorari, which has also been adopted by our
Constitution, is not meant to take the place of an
appeal where the Statute does not confer a right of
appeal. Its purpose is only to determine, on an
examination of the record, whether the inferiortribunal has exceeded its jurisdiction or has not
proceeded in accordance with the essential
requirements of the law which it was meant to
administer. Mere formal or technical errors, even
though of law, will not be sufficient to attract this
extra-ordinary jurisdiction. Where the errors
cannot be said to be errors of law apparent on the
face of the record, but they are merely errors in
appreciation of documentary evidence or affidavits,
errors in drawing inferences or omission to draw
inference or in other words errors which a court
sitting as a court of appeal only, could have
examined and, if necessary, corrected and the
appellate authority under a statute in question hasunlimited jurisdiction to examine and appreciate
the evidence in the exercise of its appellate or
revisional jurisdiction and it has not been shown
that in exercising its powers the appellate authority
disregarded any mandatory provisions of the law
but what can be said at the most was that it had
disregarded certain executive instructions not
having the force of law, there is not case for the
exercise of the jurisdiction under Article 226."
The Constitution Bench in T.C. Basappa Vs. T. Nagappa &
Anr., (1955) 1 SCR 250, held that certiorari may be and is generally
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granted when a court has acted (i) without jurisdiction, or (ii) in
excess of its jurisdiction. The want of jurisdiction may arise from the
nature of the subject-matter of the proceedings or from the absence of
some preliminary proceedings or the court itself may not have been
legally constituted or suffering from certain disability by reason of
extraneous circumstances. Certiorari may also issue if the court or
tribunal though competent has acted in flagrant disregard of the rules
or procedure or in violation of the principles of natural justice where no
particular procedure is prescribed. An error in the decision or
determination itself may also be amenable to a writ of certiorarisubject to the following factors being available if the error is manifest
and apparent on the face of the proceedings such as when it is based
on clear ignorance or disregard of the provisions of law but a mere
wrong decision is not amenable to a writ of certiorari.
Any authority or body of persons constituted by law or having
legal authority to adjudicate upon questions affecting the rights of a
subject and enjoined with a duty to act judicially or quasi-judicially is
amenable to the certiorari jurisdiction of the High Court. The
proceedings of judicial courts subordinate to High Court can be
subjected to certiorari.
While dealing with the question whether the orders and the
proceedings of subordinate Court are amenable to certiorari writjurisdiction of the High Court, we would be failing in our duty if we do
not make a reference to a larger Bench and a Constitution Bench
decisions of this Court and clear a confusion lest it should arise at
some point of time. Naresh Shridhar Mirajkar & Ors. Vs. State of
Maharashra and Anr. \200\223 (1966) 3 SCR 744, is a nine-Judges Bench
decision of this Court. A learned judge of Bombay High Court sitting
on the Original Side passed an oral order restraining the Press from
publishing certain court proceedings. This order was sought to be
impugned by filing a writ petition under Article 226 of the Constitution
before a Division Bench of the High Court which dismissed the writ
petition on the ground that the impugned order was a judicial order of
the High Court and hence not amenable to a writ under Article 226.
The petitioner then moved this Court under Article 32 of the
Constitution for enforcement of his fundamental rights under Article19(1)(a) and (g) of the Constitution. During the course of majority
judgment Chief Justice Gajendragadkar quoted the following passage
from Halsbury Laws Of England (Vol.11 pages 129, 130) from the foot-
note :
"(\200.in the case of judgments of inferior
courts of civil jurisdiction) it has been
suggested that certiorari might be granted to
quash them for want of jurisdiction [Kemp v.
Balne (1844), 1 Dow. & L. 885, at p.887],
inasmuch as an error did not lie upon that
ground. But there appears to be no reported
case in which the judgment of an inferior
Court of civil jurisdiction has been quashed
on certiorari, either for want of jurisdiction oron any other ground".
His Lordship then said :
"The ultimate proposition is set out in terms:
"Certiorari does not lie to quash the
judgments of inferior Courts of civil
jurisdiction".* These observations would
indicate that in England the judicial orders
passed by civil Courts of plenary jurisdiction
in or in relation to matters brought before
them are not held to be amenable to the
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jurisdiction to issue writs of certiorari."
[*Para 239, page 130 from Halsbury, ibid]
A perusal of the judgment shows that the above passage has
been quoted "incidentally" and that too for the purpose of finding
authority for the proposition that a judge sitting on the Original Side of
the High Court cannot be called a court inferior or subordinate to High
Court so as to make his orders amenable to writ jurisdiction of the
High Court. Secondly, the abovesaid passage has been quoted butnowhere the Court has laid down as law by way its own holding that a
writ of certiorari by High Court cannot be directed to Court subordinate
to it. And lastly, the passage from Halsbury quoted in Naresh
Shridhar Mirajkars case (supra) is from third edition of Halsbury
Laws of England (Simonds Edition, 1955). The law has undergone a
change in England itself and this changed legal position has been
noted in a Constitution Bench decision of this Court in Rupa Ashok
Hurra Vs. Ashok Hurra and Anr. \200\223 (2002) 4 SCC 388. Justice SSM
Quadri speaking for the Constitution Bench has quoted the following
passage from Halsburys Laws of England, 4th Edn.(Reissue) Vol.1 (1) :
"103. Historically, prohibition was a writ
whereby the royal courts of common law
prohibited other courts from entertaining
matters falling within the exclusivejurisdiction of the common law courts;
certiorari was issued to bring the record of
an inferior court in the Kings Bench for
review or to remove indictments and to
public officers and bodies, to order the
performance of a public duty. All three were
called prerogative writs."
"109. Certiorari lies to bring decisions of an
inferior court, tribunal, public authority or
any other body of persons before the High
Court for review so that the court may
determine whether they should be quashed,
or to quash such decisions. The order ofprohibition is an order issuing out of the High
Court and directed to an inferior court or
tribunal or public authority which forbids that
court or tribunal or authority to act in excess
of its jurisdiction or contrary to law. Both
certiorari and prohibition are employed for
the control of inferior courts, tribunals and
public authorities."
Naresh Shridhar Mirajkars case was cited before the
Constitution Bench in Rupa Ashok Hurras case and considered. It
has been clearly held : (i) that it is a well-settled principle that thetechnicalities associated with the prerogative writs in English law have
no role to play under our constitutional scheme; (ii) that a writ of
certiorari to call for records and examine the same for passing
appropriate orders, is issued by superior court to an inferior court
which certifies its records for examination; and (iii) that a High Court
cannot issue a writ to another High Court, nor can one Bench of a High
Court issue a writ to a different Bench of the High Court; much less
can writ jurisdiction of a High Court be invoked to seek issuance of a
writ of certiorari to the Supreme Court. The High Courts are not
constituted as inferior courts in our constitutional scheme.
Thus, there is no manner of doubt that the orders and
proceedings of a judicial court subordinate to High Court are amenable
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to writ jurisdiction of High Court under Article 226 of the Constitution.
Authority in abundance is available for the proposition that an
error apparent on face of record can be corrected by certiorari. The
broad working rule for determining what is a patent error or an error
apparent on the face of the record was well set out in Satyanarayan
Laxminarayan Hegde and Ors. Vs. Mallikarjun Bhavanappa
Tirumale, (1960) 1 SCR 890. It was held that the alleged error
should be self-evident. An error which needs to be established by
lengthy and complicated arguments or an error in a long-drawnprocess of reasoning on points where there may conceivably be two
opinions cannot be called a patent error. In a writ of certiorari the
High Court may quash the proceedings of the tribunal, authority or
court but may not substitute its own findings or directions in lieu of
one given in the proceedings forming the subject-matter of certiorari.
Certiorari jurisdiction though available is not to be exercised as
a matter of course. The High Court would be justified in refusing the
writ of certiorari if no failure of justice has been occasioned. In
exercising the certiorari jurisdiction the procedure ordinarily followed
by the High Court is to command the inferior court or tribunal to
certify its record or proceedings to the High Court for its inspection so
as to enable the High Court to determine whether on the face of the
record the inferior court has committed any of the preceding errorsoccasioning failure of justice.
Supervisory jurisdiction under Article 227
Article 227 of the Constitution confers on every High Court the
power of superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction excepting any
court or tribunal constituted by or under any law relating to the armed
forces. Without prejudice to the generality of such power the High
Court has been conferred with certain specific powers by sub-Articles
(2) and (3) of Article 227 with which we are not concerned hereat. It
is well-settled that the power of superintendence so conferred on the
High Court is administrative as well as judicial, and is capable of being
invoked at the instance of any person aggrieved or may even be
exercised suo motu. The paramount consideration behind vestingsuch wide power of superintendence in the High Court is paving the
path of justice and removing any obstacles therein. The power under
Article 227 is wider than the one conferred on the High Court by Article
226 in the sense that the power of superintendence is not subject to
those technicalities of procedure or traditional fetters which are to be
found in certiorari jurisdiction. Else the parameters invoking the
exercise of power are almost similar.
The history of supervisory jurisdiction exercised by the High
Court, and how the jurisdiction has culminated into its present shape
under Article 227 of the Constitution, was traced in Waryam Singh &
Anr. Vs. Amarnath & Anr. (1954) SCR 565. The jurisdiction can be
traced back to Section 15 of High Courts Act 1861 which gave a power
of judicial superintendence to the High Court apart from andindependently of the provisions of other laws conferring revisionsal
jurisdiction on the High Court. Section 107 of the Government of India
Act 1915 and then Section 224 of the Government of India Act 1935,
were similarly worded and reproduced the predecessor provision.
However, sub-section (2) was added in Section 224 which confined the
jurisdiction of the High Court to such judgments of the inferior courts
which were not otherwise subject to appeal or revision. That
restriction has not been carried forward in Article 227 of the
Constitution. In that sense Article 227 of the Constitution has width
and vigour unprecedented.
Difference between a writ of certiorari under Article 226 and
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supervisory jurisdiction under Article 227.
The difference between Articles 226 and 227 of the Constitution
was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt.
Radhikabai and Anr., (1986) Supp. SCC 401. Proceedings under
Article 226 are in exercise of the original jurisdiction of the High Court
while proceedings under Article 227 of the Constitution are not original
but only supervisory. Article 227 substantially reproduces the
provisions of Section 107 of the Government of India Act, 1915
excepting that the power of superintendence has been extended bythis Article to tribunals as well. Though the power is akin to that of an
ordinary court of appeal, yet the power under Article 227 is intended
to be used sparingly and only in appropriate cases for the purpose of
keeping the subordinate courts and tribunals within the bounds of their
authority and not for correcting mere errors. The power may be
exercised in cases occasioning grave injustice or failure of justice such
as when (i) the court or tribunal has assumed a jurisdiction which it
does not have, (ii) has failed to exercise a jurisdiction which it does
have, such failure occasioning a failure of justice, and (iii) the
jurisdiction though available is being exercised in a manner which
tantamounts to overstepping the limits of jurisdiction.
Upon a review of decided cases and a survey of the occasions
wherein the High Courts have exercised jurisdiction to command a writof certiorari or to exercise supervisory jurisdiction under Article 227 in
the given facts and circumstances in a variety of cases, it seems that
the distinction between the two jurisdictions stands almost obliterated
in practice. Probably, this is the reason why it has become customary
with the lawyers labeling their petitions as one common under Articles
226 and 227 of the Constitution, though such practice has been
deprecated in some judicial pronouncement. Without entering into
niceties and technicality of the subject, we venture to state the broad
general difference between the two jurisdictions. Firstly, the writ of
certiorari is an exercise of its original jurisdiction by the High Court;
exercise of supervisory jurisdiction is not an original jurisdiction and in
this sense it is akin to appellate revisional or corrective jurisdiction.
Secondly, in a writ of certiorari, the record of the proceedings having
been certified and sent up by the inferior court or tribunal to the HighCourt, the High Court if inclined to exercise its jurisdiction, may simply
annul or quash the proceedings and then do no more. In exercise of
supervisory jurisdiction the High Court may not only quash or set aside
the impugned proceedings, judgment or order but it may also make
such directions as the facts and circumstances of the case may
warrant, may be by way of guiding the inferior court or tribunal as to
the manner in which it would now proceed further or afresh as
commended to or guided by the High Court. In appropriate cases the
High Court, while exercising supervisory jurisdiction, may substitute
such a decision of its own in place of the impugned decision, as the
inferior court or tribunal should have made. Lastly, the jurisdiction
under Article 226 of the Constitution is capable of being exercised on a
prayer made by or on behalf of the party aggrieved; the supervisory
jurisdiction is capable of being exercised suo motu as well.
In order to safeguard against a mere appellate or revisional
jurisdiction being exercised in the garb of exercise of supervisory
jurisdiction under Article 227 of the Constitution, the courts have
devised self-imposed rules of discipline on their power. Supervisory
jurisdiction may be refused to be exercised when an alternative
efficacious remedy by way of appeal or revision is available to the
person aggrieved. The High Court may have regard to legislative
policy formulated on experience and expressed by enactments where
the Legislature in exercise of its wisdom has deliberately chosen
certain orders and proceedings to be kept away from exercise of
appellate and revisional jurisdiction in the hope of accelerating the
conclusion of the proceedings and avoiding delay and procrastination
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which is occasioned by subjecting every order at every stage of
proceedings to judicial review by way of appeal or revision. So long as
an error is capable of being corrected by a superior court in exercise of
appellate or revisional jurisdiction though available to be exercised
only at the conclusion of the proceedings, it would be sound exercise
of discretion on the part of the High Court to refuse to exercise power
of superintendence during the pendency of the proceedings. However,
there may be cases where but for invoking the supervisory jurisdiction,
the jurisdictional error committed by the inferior court or tribunal
would be incapable of being remedied once the proceedings haveconcluded.
In Chandrasekhar Singh & Ors. Vs. Siva Ram Singh &
Ors., (1979) 3 SCC 118, the scope of jurisdiction under Article 227 of
the Constitution came up for the consideration of this Court in the
context of Sections 435 and 439 of the Criminal Procedure Code which
prohibits a second revision to the High Court against decision in first
revision rendered by the Sessions Judge. On a review of earlier
decisions, the three-Judges Bench summed up the position of law as
under :-
(i) that the powers conferred on the High Court under Article 227 of
the Constitution cannot, in any way, be curtailed by the provisions
of the Code of Criminal procedure;
(ii) the scope of interference by the High Court under Article 227 is
restricted. The power of superintendence conferred by Article 227
is to be exercised sparingly and only in appropriate cases in order
to keep the subordinate Courts within the bounds of their
authority and not for correcting mere errors;
(iii) that the power of judicial interference under Article 227 of the
Constitution is not greater than the power under Article 226 of the
Constitution;
(iv) that the power of superintendence under Article 227 of the
Constitution cannot be invoked to correct an error of fact which
only a superior Court can do in exercise of its statutory power asthe Court of Appeal; the High Court cannot, in exercise of its
jurisdiction under Article 227, convert itself into a Court of
Appeal.
Later, a two-judge Bench of this Court in Baby Vs. Travancore
Devaswom Board & Ors., (1998) 8 SCC 310, clarified that in spite of
the revisional jurisdiction being not available to the High Court, it still
had powers under Article 227 of the Constitution of India to quash the
orders passed by the Tribunals if the findings of fact had been arrived
at by non-consideration of the relevant and material documents, the
consideration of which could have led to an opposite conclusion. This
power of the High Court under the Constitution of India is always in
addition to the revisional jurisdiction conferred on it.
Does the amendment in Section 115 of C.P.C have any impact
on jurisdiction under Articles 226 and 227?
The Constitution Bench in L. Chandra Kumar Vs. Union of
India & Ors., (1997) 3 SCC 261, dealt with the nature of power of
judicial review conferred by Article 226 of the Constitution and the
power of superintendence conferred by Article 227. It was held that
the jurisdiction conferred on the Supreme Court under Article 32 of the
Constitution and on the High Courts under Articles 226 and 227 of the
Constitution is part of the basic structure of the Constitution, forming
its integral and essential feature, which cannot be tampered with much
less taken away even by constitutional amendment, not to speak of a
parliamentary legislation. A recent Division Bench decision by Delhi
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High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ
Petition NO.s.758, 917 and 1295 of 2002 \200\223 Govind Vs. State (Govt.
of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD
468 makes an indepth survey of decided cases including almost all the
leading decisions by this Court and holds \200\223 "The power of the High
Court under Article 226 cannot be whittled down, nullified, curtailed,
abrogated, diluted or taken either by judicial pronouncement or by the
legislative enactment or even by the amendment of the Constitution.
The power of judicial review is an inherent part of the basic structure
and it cannot be abrogated without affecting the basic structure of theConstitution." The essence of constitutional and legal principles,
relevant to the issue at hand, has been correctly summed up by the
Division Bench of the High Court and we record our approval of the
same.
It is interesting to recall two landmark decisions delivered by
High Courts and adorning the judicial archives. In Balkrishna Hari
Phansalkar Vs. Emperor, AIR 1933 Bombay 1, the question arose
before a Special Bench: whether the power of superintendence
conferred on the High Court by Section 107 of Government of India
Act 1915 can be controlled by the Governor-General exercising his
power to legislate. The occasion arose because of the resistance
offered by the State Government to the High Court exercising its
power of superintendence over the Courts of Magistrates establishedunder Emergency Powers Ordinance, 1932. Chief Justice Beaumont
held that even if power of revision is taken away, the power of
superintendence over the courts constituted by the ordinance was still
available. The Governor-General cannot control the powers conferred
on the High Court by an Act of Imperial Parliament. However,
speaking of the care and caution to be observed while exercising the
power of superintendence though possessed by the High Court, the
learned Chief Justice held that the power of superintendence is not the
same thing as the hearing of an appeal. An illegal conviction may be
set aside under power of superintendence but - "we must exercise our
discretion on judicial grounds, and only interfere if considerations of
justice require us to do so."
In Manmatha Nath Biswas Vs. Emperor, (1932-33) 37C.W.N. 201, a conviction based on no legal reason and unsustainable
in law came up for the scrutiny of the High Court under the power of
superintendence in spite of right of appeal having been allowed to
lapse. Speaking of the nature of power of superintendence, the
Division Bench, speaking through Chief Justice Rankin, held that the
power of superintendence vesting in the High Court under Section 107
of the Government of India Act, 1915, is not a limitless power
available to be exercised for removing hardship of particular decisions.
The power of superintendence is a power of known and well-
recognised character and should be exercised on those judicial
principles which give it its character. The mere misconception on a
point of law or a wrong decision on facts or a failure to mention by the
Courts in its judgment every element of the offence, would not allow
the order of the Magistrate being interfered with in exercise of thepower of superintendence but the High Court can and should see that
no man is convicted without a legal reason. A defect of jurisdiction or
fraud on the part of the prosecutor or error on the "face of the
proceedings" as understood in Indian practice, provides a ground for
the exercise of the power of superintendence. The line between the
two classes of case must be, however, kept clear and straight. In
general words, the High Courts power of superintendence is a power
to keep subordinate Courts within the bounds of their authority, to see
that they do what their duty requires and that they do it in a legal
manner.
The principles deducible, well-settled as they are, have been
well summed up and stated by a two-judges Bench of this Court
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recently in State, through Special Cell, New Delhi Vs. Navjot
Sandhu @ Afshan Guru and Ors., JT 2003 (4) SC 605, para 28.
This Court held :
(i) the jurisdiction under Article 227 cannot be
limited or fettered by any Act of the state
Legislature;
(ii) the supervisory jurisdiction is wide and can be
used to meet the ends of justice, also to
interfere even with interlocutory order;
(iii) the power must be exercised sparingly, only
to move subordinate courts and Tribunals
within the bounds of their authority to see that
they obey the law. The power is not available
to be exercised to correct mere errors
(whether on the facts or laws) and also cannot
be exercised "as the cloak of an appeal in
disguise".
In Shiv Shakti Coop. Housing Society, Nagpur Vs. M/s.
Swaraj Developers & Ors., (2003) 4 Scale 241, another two-Judges
bench of this Court dealt with Section 115 of the C.P.C. The Court atthe end of its judgment noted the submission of the learned counsel
for a party that even if the revisional applications are held to be not
maintainable, there should not be a bar on a challenge being made
under Article 227 of the Constitution for which an opportunity was
prayed to be allowed. The Court observed \200\223 "If any remedy is
available to a party, no liberty is necessary to be granted for availing
the same."
We are of the opinion that the curtailment of revisional
jurisdiction of the High Court does not take away \200\223 and could not have
taken away - the constitutional jurisdiction of the High Court to issue a
writ of certiorari to a civil court nor the power of superintendence
conferred on the High Court under Article 227 of the Constitution is
taken away or whittled down. The power exists, untrammelled by theamendment in Section 115 of the CPC, and is available to be exercised
subject to rules of self discipline and practice which are well settled.
We have carefully perused the Full Bench decision of the
Allahabad High Court in Ganga Sarans case relied on by the
learned counsel for respondent and referred to in the impugned order
of the High Court. We do not think that the decision of the Full Bench
has been correctly read. Rather, vide para 11, the Full Bench has
itself held that where the order of the Civil Court suffers from patent
error of law and further causes manifest injustice to the party
aggrieved then the same can be subjected to writ of certiorari. The
Full Bench added that every interlocutory order passed in a civil suit is
not subject to review under Article 226 of the Constitution but if it is
found from the order impugned that fundamental principle of law hasbeen violated and further such an order causes substantial injustice to
the party aggrieved the jurisdiction of the High Court to issue a writ of
certiorari is not precluded. However, the following sentence occurs in
the judgment of the Full Bench:-
"where an aggrieved party approaches
the High Court under Art. 226 of the
Constitution against an order passed in civil
suit refusing to issue injunction to a private
individual who is not under statutory duty to
perform public duty or vacating an order of
injunction, the main relief is for issue of a
writ of mandamus to a private individual and
such a writ petition under Art.226 of the
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Constitution would not be maintainable."
It seems that the High Court in its decision impugned herein
formed an impression from the above-quoted passage that a prayer
for issuance of injunction having been refused by trial court as well as
the appellate court, both being subordinate to High Court and the
dispute being between two private parties, issuance of injunction by
High Court amounts to issuance of a mandamus against a private
party which is not permissible in law.
The above quoted sentence from Ganga Sarans case cannot
be read torn out of the context. All that the Full Bench has said is that
while exercising certiorari jurisdiction over a decision of the court
below refusing to issue an order of injunction, the High Court would
not, while issuing a writ of certiorari, also issue a mandamus against a
private party. Article 227 of the Constitution has not been referred to
by the Full Bench. Earlier in this judgment we have already pointed
out the distinction between Article 226 and Article 227 of the
Constitution and we need not reiterate the same. In this context, we
may quote the Constitution Bench decision in T.C. Basappa Vs. T.
Nagappa and Anr., (1955) 1 SCR 250 and Province of Bombay Vs.
Khushaldas S. Advani (dead) by Lrs., 1950 SCR 621, as also a
three-Judge Bench decision in Dwarka Nath Vs. Income-taxOfficer, Special Circle, D Ward, Kanpur and Anr., (1965) 3 SCR
536, which have held in no uncertain terms, as the law has always
been, that a writ of certiorari is issued against the acts or proceedings
of a judicial or quasi-judicial body conferred with power to determine
questions affecting the rights of subjects and obliged to act judicially.
We are therefore of the opinion that the writ of certiorari is directed
against the act, order of proceedings of the subordinate Court, it can
issue even if the lis is between two private parties.
Such like matters frequently arise before the High Courts. We
sum up our conclusions in a nutshell, even at the risk of repetition and
state the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002in Section 115 of Code of Civil Procedure cannot and does not
affect in any manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the
High Court, against which remedy of revision has been excluded
by the CPC Amendment Act No. 46 of 1999 are nevertheless
open to challenge in, and continue to be subject to, certiorari
and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction, i.e., when a subordinate
court is found to have acted (i) without jurisdiction - by
assuming jurisdiction where there exists none, or (ii) in excessof its jurisdiction \200\223 by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant disregard of law or the
rules of procedure or acting in violation of principles of natural
justice where there is no procedure specified, and thereby
occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate courts within the bounds
of their jurisdiction. When the subordinate Court has assumed a
jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though
available is being exercised by the Court in a manner not
permitted by law and failure of justice or grave injustice has
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occasioned thereby, the High Court may step in to exercise its
supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied : (i) the error
is manifest and apparent on the face of the proceedings such as
when it is based on clear ignorance or utter disregard of the
provisions of law, and (iii) a grave injustice or gross failure of
justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can
be perceived or demonstrated without involving into any lengthy
or complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the
subordinate court has chosen to take one view the error cannot
be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in appropriate
cases where the judicial conscience of the High Court dictates it
to act lest a gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be
exercised, when any of the abovesaid two jurisdictions issought to be invoked during the pendency of any suit or
proceedings in a subordinate court and the error though
calling for correction is yet capable of being corrected at
the conclusion of the proceedings in an appeal or revision
preferred there against and entertaining a petition
invoking certiorari or supervisory jurisdiction of High Court
would obstruct the smooth flow and/or early disposal of
the suit or proceedings. The High Court may feel inclined
to intervene where the error is such, as, if not corrected at
that very moment, may become incapable of correction
at a later stage and refusal to intervene would result in
travesty of justice or where such refusal itself would result
in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal and
indulge in re-appreciation or evaluation of evidence or
correct errors in drawing inferences or correct errors of
mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to
issue a writ of certiorari and those calling for exercise of
supervisory jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in India unlike
English courts has almost obliterated the distinction
between the two jurisdictions. While exercising jurisdiction
to issue a writ of certiorari the High Court may annul or set
aside the act, order or proceedings of the subordinatecourts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High
Court may not only give suitable directions so as to guide
the subordinate court as to the manner in which it would
act or proceed thereafter or afresh, the High Court may in
appropriate cases itself make an order in supersession or
substitution of the order of the subordinate court as the
court should have made in the facts and circumstances of
the case.
Though we have tried to lay down broad principles and working
rules, the fact remains that the parameters for exercise of jurisdiction
under Articles 226 or 227 of the Constitution cannot be tied down in a
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straitjacket formula or rigid rules. Not less than often the High Court
would be faced with dilemma. If it intervenes in pending proceedings
there is bound to be delay in termination of proceedings. If it does not
intervene, the error of the moment may earn immunity from
correction. The facts and circumstances of a given case may make it
more appropriate for the High Court to exercise self-restraint and not
to intervene because the error of jurisdiction though committed is yet
capable of being taken care of and corrected at a later stage and the
wrong done, if any, would be set right and rights and equities adjusted
in appeal or revision preferred at the conclusion of the proceedings.But there may be cases where a stitch in time would save nine. At the
end, we may sum up by saying that the power is there but the
exercise is discretionary which will be governed solely by the dictates
of judicial conscience enriched by judicial experience and practical
wisdom of the Judge.
The appeal is allowed. The order of the High Court refusing to
entertain the petition filed by the appellant, holding it not
maintainable, is set aside. The petition shall stand restored on the file
of the High Court, to be dealt with by an appropriate Bench
consistently with the rules of the High Court, depending on whether
the petitioner before the High Court is seeking a writ of certiorari or
invoking the supervisory jurisdiction of the High Court.
Costs made easy.